In Re Eiseman

KNIGHT,

J.

Habeas corpus.Petitioner seeks to be released from the custody of the sheriff of the city and county of San Francisco upon the ground that he was illegally recommitted after having been released on bail pending an appeal from a judgment of conviction.

The minute order upon which the recommitment is founded is in the following form: “In this matter it satisfactorily appearing to the court, that the bail of the defendant, J. J. Eiseman is insufficient. It is hereby ordered by the court that the sheriff of the City and County of San Francisco arrest the defendant and detain him in custody until legally discharged. Thereupon the bail was fixed in the sum of Fifty Thousand ($50,000) dollars.”

The facts leading up to the making of said order, briefly stated, are as follows: Following petitioner’s conviction on eight counts of an indictment charging violation of the Corporate Securities Act, an order was made admitting him to bail in the sum of fifty thousand dollars, pending appeal. A personal bond for that amount was approved by the trial judge, and petitioner was released from custody. Subsequently the trial judge received information from certain officials of the counties wherein the sureties claimed to be the owners of property of sufficient value to justify their qualifying for the amounts specified in said bond, to the effect that the bail was insufficient. This information was conveyed to the judge through letters written by said officials in response to inquiries made by one of petitioner’s attorneys at the request of the judge. Upon receipt of those letters petitioner’s attorneys were notified by the judge to appear in court with the petitioner on January 17, 1925. At the appointed time, in open court and in the presence of petitioner and his attorneys, the judge produced said letters, read the material portions thereof into the record, and pointed out that from the facts stated therein the bail was wholly insufficient, in that the sureties were not the owners of property of sufficient value to support the statements made by them in their affidavits of

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qualification. After briefly commenting upon the situation, the judge, addressing counsel for petitioner, said: “Now, gentlemen, do you desire to make any explanation of that matter before I make an order?" In response, the attorney by whom the inquiries had been made stated that he met the bondsmen only once, but that if the bail was insufficient petitioner “would be willing to strengthen the bond," or “add to it," so that the same would meet the requirements of the court; said attorney then requested that the court defer making its proposed order in the premises until the following Monday, at which time, he said, counsel would present certain telegrams and other communications received by them in support of the financial ability of the bondsmen to respond in the amounts for which they had become sureties. This request was denied, the judge stating that the bail was clearly insufficient. Thereupon the arrest of petitioner was ordered, and he was recommitted to the custody of the sheriff. The court then suggested to the district attorney that the matter of the attempted qualification of the sureties under oath be investigated, and that such action be taken as the ascertained facts warranted. Before the hearing concluded, counsel for petitioner stated that said sureties, all of whom were nonresidents of the city and county of San Francisco, would be in San Francisco the following Monday, and would like to be heard; but the judge replied that no testimony would be taken, except in a proceeding before a committing magistrate or the grand jury; that he “did not want to see them.” Counsel then inquired: “Well, if I am able to present bondsmen who will qualify for the amount of the bond set by your Honor, you will hear testimony?" and the judge replied, “You present the bond and then we will see about the bondsmen’s qualifications.” Petitioner was then taken into custody and has since been detained by the-sheriff in pursuance of said order.